"The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion....[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." Justice Hugo Black, Bridges v. California (1951)

Outside the Howard County Courthouse there is construction underway
on the Industrial Heritage Trail. The construction has at times forced
changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the
driveway blocking
access. To Judge Menges that was an act of contempt
by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message. “If you
don’t come with me over to the judge’s chamber,” Goodnight quoted the
Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the
record. His contempt order says the mayor blocked access to the
courthouse and says it was “intentional and done solely for the purpose
of disrupting the regular proceedings of the court.”

The judge ordered that Goodnight be sent to jail but before he
arrived there in a sheriff’s department van, the construction materials
were moved.

...

Masson raises a key legal issue: "Wouldn’t that be, at best, indirect contempt, requiring the court to
provide due process, including appointment of a special judge, before
threatening to incarcerate the mayor? (See IC 34-47-3)."

Yep, it would certainly appear to be. I would add that Judge Menges had
also become personally involved in the dispute. He had no business
whatsoever presiding over the contempt proceedings. A special judge
should have been appointed. Judges should not rule in indirect contempt
cases where they could themselves be a witness to the contempt. And
they most certainly should never preside over cases when they are
angry. When a judge finds himself or herself getting angry, the judge
should voluntarily step down from the case.

Two years ago the judge found a woman in contempt of court for having
a noisy baby in the courtroom, and in 2011, he made headlines by
issuing a court order instructing the county auditor to pay for the new
copy machine he wanted.

The facts regarding the reporter need to be made public. That and the
other incidents raise the distinct possibility that the Goodnight
contempt matter might not just be a one time situation in which Judge
Menges displayed extremely poor judgment and abused his contempt
authority. Rather, it appears to be a pattern of abusing power that suggests
Judge Menges may well not have the temperament to be a judge.

While Mayor Goodnight talks possible legal action, I would imagine he
will also end up filing a complaint with the Indiana Judicial
Qualifications Commission, the body that disciplines the state's judges.
Given Judge Menges pattern of conduct, it may well be a complaint that
is found to have merit.

Tuesday, August 19, 2014

In an order handed down by the Indiana Supreme Court last month, it was announced that the annual attorney fee for active licenses would increase by 25% from $145 to $180. These fees go to fund the operation of the Indiana Supreme Court Disciplinary Commission, Judges and Lawyers
Assistance Program and the Commission for Continuing Legal Education. Other fees that also fund those judicial agencies are seeing a similar increase.

Officials immediately patted themselves on the back for having a low attorney annual fee compared to other states. The Indiana Lawyer reports:

Jim Dimos, President,
Indiana State Bar Association

Regarding fees compared to other states, “Indiana is so low that
whether we’re counted as lowest or second-lowest
is negligible,” [Supreme Court spokeswoman Kathryn] Dolan said. That analysis
is tricky, though, she said, because some states include mandatory state
bar
fees or other fees that Indiana doesn’t.

Even among voluntary bar states, Indiana’s fees are below average, Dolan said.
Indiana State Bar Association President
Jim Dimos said increases are never popular, but the registration dues
remain low
compared to states that don’t include
mandatory bar fees.

“From our experience at the state bar,
the court seems to administer things relatively modestly,” Dimos said.
“While no one’s happy about paying more
fees, we’re confident the court thought long and hard about this
and believes they need these resources to
continue to provide services to lawyers in the state of Indiana.”

Of course, none of this praise addresses much needed questions that need to be asked about why the operating costs of these judicial agencies have increased so much as to require a 25% increase even though inflation has been negligible since the last increase in 2011.

I can give Dolan a pass. She's just a spokeswoman doing her job. However, you would think Dimos, as President of the Indiana State Bar Association, might actually stand up for the attorneys his organization represents and question the need for such a large increase while many attorneys, especially younger attorneys saddled by huge law school bills, are struggling financially. Not unexpectedly though, the bar association once again fails to advocate for attorneys, which is exactly why so many attorneys don't join the association.

Let me do Dimos' job for him. The problem is that these judicial agencies, in particular the Disciplinary Commission have not controlled their costs and prioritized their activities. This past year we have witnessed the Commission spending enormous amounts of money in zealous, overreaching efforts to pursue attorneys on minor violations unrelated to protecting the public from dishonest attorneys. Meanwhile attorneys who have committed extremely serious ethical lapses or even are convicted off felonies, go unpunished by the Commission of have their prosecutions delayed for months if not years.

This is a fact I know all too well. The Disciplinary Commission spent over $20,000 in their extremely aggressive prosecution of me for criticizing a judge in an email. That's the entire disciplinary fees paid by 142 attorneys. And that figure is expenses only, i.e. it does not count the salaries of the attorneys and scores of employees at the Commission who worked on my case. My prosecution wasn't about my being an unethical attorney. It was a prosecution that was filed and zealously pursued because I had publicly criticized the Commission on my blog, including Executive Secretary Michael Witte. During later filings, the Commission all but admitted that fact when it asked for a one year suspension for me in part because I had publicly criticized the Commission on my blog.

I'd like to say the way my prosecution was pursued was unique. But repeatedly we have seen a Disciplinary Commission exercise such poor judgment in the prosecutions the Commission chooses to pursue and how those prosecutions are pursued, that the Commission has drawn editorial criticism of legal blogs and scholars across the country. Even non-legal publications have written critically of the activities of the Commission.

Chief Justice Loretta Rush

Yesterday we saw the swearing in of a new chief justice, Loretta Rush of Lafayette. As reported by Indiana Politics, Chief Justice Rush identified reform in Marion County of the small claims courts and judicial selection process as goals of her new administration. I applaud that much needed focus of reform efforts and have written about those subjects several times. I hope too that she will take a close and comprehensive look at the operations various judicial agencies for which the Indiana Supreme Court is responsible. The operations of the Disciplinary Commission in particular need to be reviewed and major reforms instituted, reforms that help the Commission reprioritize so its primary task is protecting the public from dishonest attorneys. There also needs to be much more transparency in the disciplinary process.

Most importantly attorneys need to have the opportunity to provide feedback about their experiences with the Commission to the Chief Justice in a confidential manner. Right now attorneys across the State are fearful that if they dare publicly criticize the Commission, and virtually every attorney does privately, they will become on the Commission's radar and have their legal careers jeopardized. As someone who has experienced the wrath of the Commission for speaking out publicly against it, I know that retaliation from the Commission is a real possibility for any attorney taking the route I did of speaking out about the need for reform in the disciplinary process.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.